Playing open records games

Freedom of Information audit finds obstacles to overcome for lawful documents from schools

The principle behind sunshine laws is simple: Citizens of a democratic nation should be able to find out what decisions are being made by government agencies, including state universities. The reality of using these laws to obtain public documents is much more complex, especially with universities' understaffed offices, reams of paperwork and wariness about releasing anything that might hurt the institution's public image.

Studies show that public universities and school districts come in second only to law enforcement agencies for worst responsiveness to public records requests, said Dave Cuillier, chairman of the Society of Professional Journalists Freedom of Information Committee and an assistant professor at the University of Arizona.

"University lawyers are usually pretty good at coming up with innovative approaches to secrecy and hiding things," he said.

Universities do not think of themselves as government agencies, said Charles Davis, executive director of the National Freedom of Information Coalition and associate professor at the University of Missouri. Academia fosters an insulated, closed culture, he said, and universities know how to keep certain records from the public eye if they want to.

"There are any number of ways to make it so painful for the requester ' either through price or through process ' that if you don't give up you might just die waiting for the thing," Davis said.

The Student Press Law Center encountered a variety of roadblocks in a project assessing institutions' responses to public records. Working with a team of college journalism students, the SPLC sent out letters to more than 100 public and private institutions seeking information about student misconduct and discipline statistics.

Schools all received the same request letter, but some responded with detailed spreadsheets while others did not respond at all. Virginia Polytechnic Institute sent a thick packet of information a week after the request was sent; the University of Alabama responded on April 6 to say they were working on the request originally sent Feb. 5.

Navigating the law

Some differences are the product of widely varying state sunshine laws, each with its own requirements and exemptions.

"It's important to head into these situations armed to the teeth with the nuances of the law and how far it can work for you," said Kerry Solan, a University of North Texas student who helped with the SPLC project.

Public agencies in Colorado and Georgia have three days to respond to a request, while in Maryland they get 30 days ' and in many states the law requires only that the response be "prompt." Some states honor requests by e-mail, some do not. Some states allow hourly fees for compiling the records, others do not. In Delaware and Pennsylvania, universities are exempt from public records laws.

Complicating matters even more at colleges and universities is the federal Family Educational Rights and Privacy Act, which prohibits educational institutions from releasing students' confidential educational records. Unlike the state exemptions that allow agencies to withhold information if they want to, FERPA threatens institutions with loss of federal funding if they let protected information leak out. The SPLC request was tailored to FERPA stipulations by requesting only summary data with no students' names, but the University of Texas at Austin and several other schools still cited the law as a reason for delays or denying parts of the request.

Melany Aldridge, a paralegal who fills records requests at Eastern Kentucky University in Richmond, Ky., said the legal staff has spent hours debating how much information they can release in response to certain records requests.

"We try to make a very conscious effort to provide the information that we are required to provide, while at the same time watching out for an individual's privacy rights," she said.

Cuillier said the genuine concern for students' privacy and FERPA compliance gets out of hand when schools start withholding all records that even mention students as "educational records" ' even things like parking tickets or school lunch menus.

"They keep it hidden because of FERPA, and that's just outrageous," Cuillier said. "It's taking FERPA and warping it into a mutant beast that's keeping everything secret."

The fees allowed by law also imposed a roadblock to some schools' data. Though most institutions provided the information free of charge, the University of Georgia said the documents would cost $136 and the University of Maryland estimated $653.51. North Carolina State University sent a three-page letter explaining why the request would cost $7,577.30.

"People can use the pricing mechanism in state FOI law to their advantage in a huge way," Davis said.

In many cases institutions acknowledged the request promptly but left the "processing" period open-ended. A month after requests were sent, the majority of schools had responded to acknowledge the request, but had not yet provided the documents.

Making a successful request

Opening up lines of communication is key, Cuillier said, because it is the only way to find out whether the missing records are the captive of a stonewalling university or just the victim of an overworked office.

Steve Parrott, director of university relations at the University of Iowa in Iowa City, said making a request as specific as possible is helpful since the university gets more than 200 requests each year.

"If you're asking for a lot, be patient but persistent," he said.

In the SPLC project, student journalists found that often the most challenging part of the process was finding out where to send the request and how to phrase it. Some universities have a "public information officer," some have a "records custodian," and some have no particular contact person. The department dealing with student misconduct might have a name like the "Office of Community Standards and Student Ethics" or it might just fall under the Dean of Students' office. When a request was sent to the wrong department at the State University of New York at Binghamton, the school sent back a statistics spreadsheet full of zeroes.

Humboldt State students Mark Farias, Lou Sherry and Octavio Lopez Raygoza review returns from universities. Courtesy of Torrey Hartman.

"I'd say take some time and do a little research before you pick up the phone," said Cesar Rojas, a student at the University of Wisconsin at Milwaukee who helped with the project.

After a frustrating experience getting shuffled from one official to another in the University of Wisconsin system for the SPLC project, UW-Milwaukee student Kevin Lessmiller learned the value of connecting with the person handling the request.

"It makes the process much easier when people on the other end of the records request know who you are when you call to check on the status," he said in an e-mail.

Treating the request as a conversation would eliminate several universities' responses that simply said there were "no documents responsive" to the request. Dropping off a request in person and letting the public records custodian look it over at the outset can make a big difference, Aldridge said.

"I think part of it is just keeping an open dialogue and not being afraid to say why you're looking for things ' you don't have to disclose fully, but a little bit of information would be helpful," she said.

Reporters are likely to get the most information when they are civil and patient, Davis said.

"You're just not going to get anywhere going all 'Woodward and Bernstein' from the get-go," he said.

"It's just not going to help."

Diplomacy and persistence

Some schools responded to the SPLC's request even when they were not bound by law. Private institutions such as Yale College, Stanford University and Duke University sent links to online data, and the University of Arkansas provided information even though Arkansas agencies are only required to respond to citizens of the state. Though Pennsylvania State University is considered a "state-related" school not subject to open records law, it sent a thick envelope of information.

Bill Huston, the interim director of Judicial Affairs at Penn State, said he takes his role seriously as a steward of private information and educational records protected under FERPA, but also does not see any reason to withhold statistical information that could be helpful for research or identifying trends.

"If people are earnestly trying to obtain objective information about what's going on, I think that's a good thing to share," he said.

Cuillier said these institutions understand that providing information is beneficial because it builds trust in the community. Too often the discussion about open government gets bogged down with nuances of the law instead of focusing on what makes sense to release, he said.

"I think that's how we have to look at all this ' what makes sense to be public and what should be secret," he said.

The law is not always necessary to fight reluctant institutions, either. Filing a lawsuit for records is always an option, but journalists have other, cheaper tools. Writing editorials is effective, Davis said, and now newspapers have space on the Internet to document the entire public records process, from a copy of the original request to a calendar showing how long a school has failed to respond.

"That is extraordinarily painful for college administrations that are, at their heart, political beasts," Davis said.

Students also found that plain old perseverance pays off. John Osborn, a recent graduate who coordinated the Humboldt State University students' portion of the project, encouraged students to be persistent with the school officials so the request could not be purposely ignored or inadvertently lost in other paperwork."Every time they send you an e-mail and they give you whatever reason why they're not going to give you the records, push them on it," he said.

reports, Spring 2009